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For over thirty years home healthcare workers have been exempt from overtime and minimum wage requirements under the Fair Labor Standards Act's ("FLSA") companionship exemption. This week the U.S. Department of Labor ("DOL") announced that it plans to create new regulations that will extend federal overtime and wage protections to roughly two-million home healthcare workers. Although most home healthcare workers earn at least minimum wage, many do not receive overtime compensation, including compensation for the time they spend traveling between patients' homes. Some states, such as Maine, Massachusetts, New York, New Jersey, Pennsylvania, and Maryland, already provide home healthcare workers with minimum wage and overtime protections under state wage and hour laws. Thus, the impact in those states will likely be less than in the vast majority of other states that do not have similar state wage and hour requirements.

The United States Supreme Court will soon consider whether pharmaceutical sales representatives ("PSRs") are entitled to overtime pay under the Fair Labor Standards Act ("FLSA"). The case comes to the Court from the Ninth Circuit where that court found that PSRs are exempt from overtime pay under the FLSA's "outside sales" exemption. In contrast, the Second Circuit had previously ruled that PSRs are not exempt from overtime. Thus, there is a circuit split and the Supreme Court's decision could have ramifications for employers in general, especially those that maintain an outside sales force.

Verrill Dana attorneys Matt Bahl and Richard Moon had an article published in the December edition of HR Advisor, a national publication providing legal and practical guidance to employers. The article, titled Using Social Media In The Hiring Process: Legal Landmines, Practical Tips, and Bad Hires (oh my!), provides employers with an overview of the legal risks they face in using social media to vet potential hires. The article also offers practical advice to minimize legal risk when using social media in the hiring process.

This week the Board released the text of the proposed amendments to Board Rule 1.1, addressing the “14-Day Rule”. The changes were prompted by this year’s Law Court decision in Doucette v. Hallsmith/Sysco Food Services, Inc., 2011 ME 68, upholding a Board award of more than $140,000 in a case where there was no proven incapacity and the employee did not lose work time as a result of his injury.

The Department of Labor (“DOL”) is currently considering significant changes to the Labor-Management Reporting and Disclosure Act (“LMRDA”) that may discourage some employers from seeking legal advice, or even prevent attorneys from providing legal services in some situations. Specifically, the proposed changes would eliminate the “advice” exception to the so-called “persuader rule.” The changes have not yet taken effect, and some legal organizations, inlcuding the American Bar Association, have come out against the DOL's proposed changes.

The Wall Street Journal recently published an opinion article analyzing public school teacher compensation. The article discusses sensitive issues relating to factors one should consider when evaluating teacher compensation. For example, the article discusses how a teacher's educational background, relative job security, and three months off inform the analysis about why we compensate teachers the way we do. And, of course, the article deals with the greater pension and healthcare benefits that public sector employees often recieve as compared to their private sector counterparts.

Regardless of whether you agree with the article's opinion, it serves as a reminder to employers - public and private - that analyzing employee compensation packages requires fairness and objectivity. Employers that decide to evalute their compensation packages might want to consider some of the following issues, which have dominated employee compensation discussions in recent years:

Employers are looking more frequently at the cost disparity between the healthcare benefits offered for families and those for single employees. Single employees often pay significantly less for their health costs than employees with families.

Equally important is the question of how to account for and treat employees who do not subscribe to company healthcare, and instead rely on another family member's plan.

Finally, how are other, similar employees being paid? Wage surveys and other vocational data may help employers determine if they are paying employees at, below, or above market. Employers often make adjustments to their wage scale - both upward and downward - in respose to market conditions and institutional values.

While no compensation system will be perfect, and there will always be room to argue over the percieved fairness of compensation plans, employers can and should review their wage and benefit practices. Doing so will help employers identify compensation issues unique to their own business and will help employers determine if their compensation practices are consistent with both the competitive market and the individual needs of their workforce.